Article 1 of the Rome Statute asserts that the Court “shall be complementary to national criminal jurisdictions.”10 Article 17 further elaborates on this complementarity principle by providing guidelines to the OTP when making determinations on admissibility. The Court should find that cases are inadmissible when:

1. The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;

2. The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;

3. The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;

4. The case is not of sufficient gravity to justify further action by the Court.11

Therefore, Article 17(1) poses strict limitations on the Court for when investigations can be opened. Arguably, the proprio motu power should only be utilized when State Parties either have no intention to prosecute or are unwilling and/or unable to do so.

Whether or not a State Party is unwilling is determined by Article 17(2). Unwillingness will exist in three circumstances. First, the proceedings are undertaken in a manner that effectively shields the defendant from criminal responsibility.12 Secondly, proceedings are delayed to the extent that the defendant is not brought to justice.13 Finally, the proceedings are not “conducted independently or impartially” and are done in a manner “inconsistent with an intent to bring the person concerned to justice.”14

Inability amounts to a “total or substantial collapse” of the judiciary system.15 Additional factors include whether or not the State Party is able to gather sufficient testimony or evidence against the accused and whether proceedings can be carried out at all.16

The current complementarity regime bases admissibility entirely on the willingness and ability of the State to prosecute. This passive complementarity should only enable the Court to step in when a State Party fails to prosecute and the Court has jurisdiction over the alleged crime—which admittedly should only apply in limited instances.17

Unfortunately, the complementarity regime has not worked in practice. State Parties have sought to shift the costs associated with international criminal prosecutions almost entirely to the ICC.18 State Parties may now choose to decline to initiate any investigation or prosecution—going so far as to self-refer situations to the Court without suffering any political cost.

A. Problems with the Existing Regime: A Case Study on Uganda

In 2004, Ugandan President Museveni referred the crimes committed by the Lord’s Resistance Army (LRA) to the Court.19 He claimed that the Government was not able to locate and apprehend all LRA suspects, since some had taken refuge in neighboring countries.20

Interestingly, Museveni was likely in a better position to apprehend suspects than the ICC, who has no enforcement power to fulfill its arrest warrants.21 The President may have made use of national institutions (such as the Ugandan military) or simply cooperated with neighboring Governments to apprehend and extradite suspects.22

However, domestic prosecutions may have proven costly to the Government since they were involved in negotiations with the LRA at the time.23 Museveni also faced potential public disapproval if domestic prosecution went ahead since victims encouraged forgiveness and reconciliation processes as a means of achieving quicker peace.24 As a result of the self-referral, President Museveni was able to avoid domestic political costs while receiving international recognition for his effort at ending impunity and fulfilling Uganda’s mandate to the Rome Statute.25 By contrast, the ICC has faced criticism over the inability to fulfill all outstanding arrest warrants against LRA members.26

II. If Complementarity is Ignored, Why Keep It?

Despite the existence of a high threshold as regards “unwillingness” and “inability” criteria, the ICC has taken a lenient approach to these admissibility requirements (as seen in the above example regarding the situation in Uganda). Since complementarity is not followed to the letter of the Statute, it is important to examine why the principle should be kept.

The complementarity principle makes sense from a financial perspective since it will typically be less costly to conduct investigations and prosecutions in the jurisdictions where the crime has been committed.27 From a practical perspective, the evidence and potential witnesses are already present. When the ICC chooses to prosecute a case, resources need to be spent to bring any evidence and witnesses to The Hague (and to keep them there for the duration of the trial). National proceedings will also be held in the language of the country—thereby reducing the need for any translators.28

However, the principle is not only important for practical considerations—it also promotes the rule of law. Core international crimes tend to take place where there are vacuums of authority and law. National prosecutions help accomplish transitional justice goals by trying those persons accountable for previous international crimes. Domestic judiciaries can thereby reestablish the rule of law through prosecution.29

The complementarity principle also enables State Parties to utilize domestic legal traditions.30 For example, if the State Party adopts Sharia law or makes use of jury systems, then the ICC may not be the best choice for prosecution. Domestic courts may instead utilize their preferred domestic justice mechanisms. For example, while not ending in criminal punishment, truth commissions have been used at various times by State Parties (of particular note is the use of truth commissions by South Africa for the apartheid regime).31

Finally, States would have been reluctant to adopt the Rome Statute if primacy for prosecution was not guaranteed as this would have amounted to a not-so-insignificant infringement on sovereignty.32 This would likely be an inhibiting factor for future adoption of the Statute now if complementarity were abandoned. The adoption of the Rome Statute will be crucial to ending impunity for the future commission of atrocity crimes—thereby making the complementarity principle vital to the effectiveness of the Rome Statute.

III. How to Make Complementarity Work in the Future

Despite not being utilized as envisioned, the complementarity regime is a cornerstone to the Rome Statute. It serves as a means to ensure that State Parties and the ICC alike fulfill their mandate to end impunity for the core international crimes. However, the passive complementarity regime as it currently stands must change. The Court will be unable to continue shouldering the burden for criminal prosecutions given their stringent financial and practical resources.

The future of the ICC should not be measured by how many criminal prosecutions it conducts but, instead, by its efforts to facilitate national prosecutions.33 The OTP should focus efforts on moving from a passive complementarity policy to one of proactive complementarity. This would require the Court to actively encourage and provide help to national governments in prosecuting core international crime.34

In a Resolution at the Kampala Review Conference, the Assembly of State Parties stressed the need to build upon national capability:

The Review Conference […] encourages the Court […] to further explore ways in which to enhance the capacity of national jurisdictions to investigate and prosecute serious crimes of international concern.35

The OTP has taken some steps to facilitate such national capacity-building. For example, the OTP has made Legal Tools available for use in domestic prosecutions. This project offers domestic prosecutors a means to develop legal knowledge on the substantive criminal elements of the core crimes.36 The Legal Tools project helps build national capacity in terms of the legal knowledge needed in order to effectively prosecute crimes against humanity, war crimes, and genocide. However, this will not suffice to best place domestic courts in their prosecution of alleged criminals. Complementing the Legal Tools mechanism, the OTP should also adopt a strategy that would enable countries to more easily prosecute from a practical evidentiary standpoint.

A. Prosecution Dossiers

The OTP does not limit its activities to the prosecution of alleged criminals. Instead, substantial resources must go into evidence-gathering and case-building. Instead of utilizing this gathered information for eventual international prosecution, the Prosecutor should instead make this information available to domestic prosecutors for use in national proceedings. This would have the effect of eliminating the Article 17(1) admissibility requirement of “inability” from an evidentiary standpoint. With the use of such prosecution dossiers, national jurisdictions will be better placed to conduct necessary criminal prosecutions.

The prosecution dossiers would essentially constitute a fact-sheet, comprising all the information gathered by the Court up to that point. This would include all evidence collected and lists of potential witnesses. Initially, the OTP would create prosecution dossiers to focus attention predominantly on low-hanging fruit. This would comprise information gathered, over the course of the OTP investigation, on individuals that the ICC would normally not prosecute. The Court would then utilize the information gathered to conduct prosecutions on those individuals most responsible, whilst allowing domestic jurisdictions to prosecute those lesser culpable individuals. Over time, the Court will provide State Parties with prosecution dossiers for both low-hanging fruit and those believed most culpable for core international crimes. The ICC would then transition to prosecuting those cases that would otherwise be neglected by domestic jurisdictions (or are referred by the UNSC).

The use of a dossier system would be beneficial for both the Court and State Parties. The ICC only has limited resources to prosecute everyone deemed culpable for the most egregious crimes. Currently, the Court has taken the position that it will prosecute those persons most responsible. This is a very limited understanding of their mandate “to end impunity.”37 Not only would the dossiers save the Court time and money by avoiding an international trial, but it would also ensure that persons (other than commanders) are held criminally liable.

A State Party that had the willingness to prosecute international crime may not have had the means due to limited investigative ability. Those State Parties that did not have the technical means to gather and store evidence could thereby benefit from the Court’s resources. It would also encourage adherence to the Rome Statute, by ensuring that the primacy of domestic prosecutions is respected.

The OTP would only begin prosecution once it has become clear that there would be no attempt by the State Party to prosecute. Therefore, if and only if a State Party refuses to act on the prosecution dossier provided, would the Court begin proceedings. The ICC would actually become a “Court of Last Resort” in this instance.38

The system will be a significant step towards resolving the current problem faced by the Court. By creating enough social pressure on State Parties to domestically prosecute alleged crimes—this will ideally stop State Parties from relying on the ICC to shoulder the burden of prosecution. However, the ICC will still need to conduct prosecutions. The dossier system will not be the answer for situations where a State Party is unable to conduct prosecutions (per Article 17(2) standards). It will also not apply in situations where the UNSC refers incidents of non-State Parties.

The prosecution dossier system would also be easily instituted with existing Court resources. The OTP would conduct investigations regardless of the dossier system’s existence. Thereby, the Court will just be transferring the gathered information to domestic courts for additional prosecution of perpetrators. Eventually, the Court will be able to save substantial resources by avoiding the costs of international prosecution. By changing the metric of success to national capacity-building, the Court will further the effort to end impunity more so than by the current policy of international prosecution for only those most responsible.

This policy will also ensure the Court’s future. State Parties will no longer be encouraged to shift the burden of prosecution to the Court, particularly when faced with domestic and international criticism. Faced with the threat of international intervention, courts may be encouraged to commence domestic prosecutions.39 The Court, in the future, will be able to focus resources on investigatory capacities in addition to prosecuting when there would otherwise be impunity. This, in turn, will prevent the Court from stretching its resources too thin.

B. Limitations

There are three major concerns that will need to be resolved following the introduction of a prosecution dossier system. First, there will be legitimacy concerns raised by the possible sole reliance on the Court providing all needed material for prosecution. National courts may no longer feel the need to find additional witnesses or evidence to help build their case. Concerns would also be raised that the defense would not have an equal opportunity to gather evidence or comparable resources compared to the ICC. In response, the prosecution dossiers should be available to both the Prosecutor and defense counsel. This will alleviate concerns of resource disparity between opposing parties. Additionally, the OTP should openly encourage State Parties to conduct their own investigations for supplemental evidence before commencing prosecution.

Secondly, corruption may be a concern. Witnesses against high-ranking government officials may be killed if included on the dossiers. Some type of security system will, thus, be needed to avoid the death of these persons. Potentially, witness lists may only be made available to Prosecutors in order to protect identities. Non-governmental organizations that fight corruption may also report on incidents of witness intimidation. These reports would result in international criticism being directed at the State Party, which may deter future threats and violence.

Third, the dossier system would encourage domestic prosecution over potential due process concerns. The text of Article 17 makes a case inadmissible in situations that make it more difficult for a criminal defendant to be held accountable.40 Article 17 does not, in fact, cover situations where it would make the defendant easier to convict. This would be the case, for instance, in a sham trial.41 It is arguable that the prosecution dossier system would result in more convictions, but also increased due process infringements on the part of the accused. In order to avoid this, the Assembly of State Parties should consider amending the Rome Statute in the future to include due process considerations as grounds for admissibility to the ICC under Article 17.42

IV. Conclusion

Under the current policy, the ICC will not be able to continue prosecuting high-level perpetrators of international crime with its jurisdictional and financial limitations. As the ICC looks towards the next ten years, efforts must be made to enhance national capacity-building. One way to shift to a policy of proactive complementarity is to incorporate prosecution dossiers into the investigation process of the OTP. A dossier system, focused on providing domestic courts with the evidentiary capacity to conduct domestic prosecutions, would enable more prosecutions and adherence to the complementarity regime. By changing the metric to success to national capacity-building, the Court will further its goal of ending impunity for the most serious international crimes.

Endnotes — (click the footnote reference number, or ↩ symbol, to return to location in text).

1. 1.

   Luis Moreno-Ocampo, ICC Prosecutor, Statement Made at the Ceremony for the Solemn Undertaking of the Chief Prosecutor of the International Criminal Court (Jun. 16, 2003), available online. ↩

2. 2.

   Rome Statute of the International Criminal Court, Adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Jul. 17, 1998, UN Doc. A/CONF.183/9, as amended [hereinafter Rome Statute], Preamble, available online. ↩

3. 3.

   William W. Burke-White, Proactive Complementarity: The International Criminal Court and National Courts in the Rome System of International Justice, 49 Harv. Int’l L.J. 53, 60 (2008), available online. ↩

4. 4.

   Id. at 67. ↩

5. 5.

   About, ICC, available online (last visited Jun. 18, 2018). ↩

6. 6.

   Rome Statute, supra note 2, Art. 15(1). ↩

7. 7.

   Id. at Art. 13(a) and (b). ↩

8. 8.

   Linda E. Carter, The International Court in 2021, 18 Sw. J. Int’l L. 199, 200 (2011), paywall. ↩

9. 9.

   Id. at 201. ↩

10. 10.

    Rome Statute, supra note 2, at Art. 1. ↩

11. 11.

    Id. at Art. 17(1). ↩

12. 12.

    Id. at Art. 17(2)(a). ↩

13. 13.

    Id. at Art. 17(2)(b). ↩

14. 14.

    Id. at Art. 17(2)(c). ↩

15. 15.

    Id. at Art. 17(2)(3). ↩

16. 16.

    Id. ↩

17. 17.

    William W. Burke-White, supra note 3, at 56. ↩

18. 18.

    Id. at 62. ↩

19. 19.

    Id. ↩

20. 20.

    Press Release, ICC, President of Uganda refers situation concerning the Lord’s Resistance Army (LRA) to the ICC, ICC-20040129-44 (Jan. 29, 2004), available online. ↩

21. 21.

    William W. Burke-White, supra note 3, at 63. ↩

22. 22.

    Id. ↩

23. 23.

    Id. ↩

24. 24.

    Marc Lacey, Atrocity Victims in Uganda Choose to Forgive, N.Y. Times, Apr. 18, 2005, available online. ↩

25. 25.

    William W. Burke-White, supra note 3, at 63. ↩

26. 26.

    Press Release, ICC, ICC Prosecutor’s Message to the LRA (Mar. 18, 2013), available online. ↩

27. 27.

    Beth Van Schaack, The Building Blocks of Hybrid Justice, 44 Denv. J. Int’l L. & Pol’y 169, 215 (Dec. 19, 2015, as revised Apr. 18, 2016), available online, doi. ↩

28. 28.

    Id. ↩

29. 29.

    Alberto Costi, Hybrid Tribunals as a Viable Transitional Justice Mechanism to Combat Impunity in Post-Conflict Situations, 22 NZULR 213, 215 (Dec. 2006), available online. ↩

30. 30.

    Van Schaack, supra note 27, at 51. ↩

31. 31.

    William W. Burke-White, supra note 3, at 75. ↩

32. 32.

    Carter, supra note 8, at 201. ↩

33. 33.

    Linda E. Carter, The Future of the International Criminal Court: Complementarity as a Strength or Weakness?, 12 Wash. U. Global Stud. L. Rev. 451, 451 (2013), available online. ↩

34. 34.

    William W. Burke-White, supra note 3, at 56. ↩

35. 35.

    Review Conference of the Rome Statute, Kampala, Resolutions and Declarations Adopted by the Review Conference, RC/Res.1 (Jun. 8, 2010), available online. ↩

36. 36.

    Carter, supra note 8, at 204. ↩

37. 37.

    Rome Statute, supra note 2, at Preamble. ↩

38. 38.

    Carter, supra note 33, at 451. ↩

39. 39.

    William W. Burke-White, supra note 3 at 57. ↩

40. 40.

    Kevin Jon Heller, The Shadow Side of Complementarity: The Effect of Article 17 of the Rome Statute on National Due Process, 17 Crim. L. Forum 1, 2 (2006), available online, doi. ↩

41. 41.

    Id. at 20. ↩

42. 42.

    Id. at 24. ↩